After more than 20 years of lobbying by Japanese citizen's groups, opposition
political parties and others, Japan's national Information Disclosure Law
came into effect on April 1, 2001 (Joho Kokai Ho, formally titled
Gyoseikikan
no Hoyu Suru Joho no Kokai ni Kansuru Horitsu,“ Law Concerning Disclosure
of Information Held by Administrative Agencies”). This law creates
for the first time a legally enforceable right of access to Japanese national
government files.

Japan thus joins a growing list of countries with national laws providing
a right of access to government information, including in Asia, the Republic
of Korea and Thailand. The U.S. Freedom of Information Act (FOIA),
which served as a model and inspiration for Japan's law, was enacted in
1966 and has been expanded and improved many times since. FOIA
has been used by millions of people to access a vast range of previously
confidential information concerning such matters as food and drug safety,
the environment, government investigations, and virtually every topic of
public interest.

Will the new Japanese law play a similar role in Japan? Only time
will tell. More than four thousand information disclosure requests
were filed with national government agencies during the first week of operation
alone. It is too early to evaluate either the nature of these requests
or the government's response. Compared to the American FOIA, language
in the Japanese statute clearly restricts the availability of many categories
of important information and provides much broader discretion to officials
in possession of the files.

Below is a brief legislative history of the law followed by an analysis
and comparison of its key provisions with analogous provisions of the U.S.
FOIA.

History

Academics, attorneys and civic activists in Japan began lobbying for
a national disclosure law in the 1970s. Initial interest was spurred by
strong public concern over failures in public administration illustrated
by incidents such as the Lockheed scandal, illness and death due to defective
drugs, severe cases of industrial pollution, and other causes.

Advocates saw a national information disclosure law as a practical tool
to combat official secrecy and to root out the causes of government regulatory
failures. Local governments responded quickly. By 1985 major population
centers, including Tokyo, Osaka, Kanagawa and Saitama, had all adopted
information disclosure ordinances. By the time the Information Disclosure
Law was enacted in 1999, close to 900 local governments, including all
the prefectures, had information disclosure ordinances or guidelines in
place.

At the national level, the bureaucracy teamed with a single party government
to delay serious consideration of a disclosure bill until the mid-1990s.
Formation of the Hosokawa Cabinet in 1993 led to appointment of an Administrative
Reform Commission (ARC, Gyosei Kaikaku Iinkai) with a mandate that
included drafting a national disclosure statute. A subcommittee (Expert
Committee on Disclosure of Administrative Information, Gyosei Joho Kokai
Bukai) expressly devoted to this purpose was appointed in 1995.
Chaired by a retired Supreme Court Justice and with leading administrative
law scholars and ex-bureaucrats included among its membership, the committee
delivered its final report (composed of a proposed bill, joho kokai
yokoan, and commentary, kangaekata) in December 1996.
That same month the Hashimoto Cabinet adopted a resolution declaring its
intention to pass legislation based on this report. Members of both
opposition and government parties seized upon the report as a base for
legislation. In 1997, all major opposition parties submitted draft
legislation to the Diet. In March 1998, the three ruling coalition
parties reached agreement. They submitted a government bill to the
Diet on March 28, 1998. This bill would be subject to debate and
amendment over the course of the next fourteen months, and formally passed
into law by resolution of the lower house of the Diet on May 7, 1999.

Under dedicated coaching from pro-disclosure citizens groups, opposition
party Dietmembers successfully obtained a number of key concessions from
the ruling coalition, resulting in a series of revisions and supplements
to the government bill. The major thrust of these changes is to both
guide implementation of the law and to lay the foundation for future legislation
expanding disclosure. Key subjects included the following:

1. Jurisdiction. The original government bill would have
required that all disclosure-related litigation be filed in Tokyo District
Court, potentially imposing a significant burden on requesters residing
far from Tokyo. The revised bill expanded such jurisdiction to include
district courts located at the eight appellate court venues throughout
the country. (Opposition Diet members demanded, but failed to add
Naha in Okinawa as a ninth venue.)

2. Special Public Corporations (tokushu hojin).
Numerous special public corporations that provide basic public services
are outside the scope of administrative agencies subject to the statute.
The bill requires that legislation governing disclosure by these entities
be adopted within two years of passage of the disclosure law by the Diet.
(A government bill was passed into law on November 2, 2001.)

3. Future Action. In addition to the statement concerning
a future law governing public corporations, the statute also requires the
Diet to review the operation of the law four years from its adoption and
consider measures to improve implementation. Additional statutory
language requires the continued study of issues such as explicit mention
of the “Right to Know” in the law, adoption of an Administrative Documents
Management Law (gyosei bunsho kanri ho) and “other issues” raised
during Diet deliberations.

4. Standards Governing Disclosure Decisions. The revised
bill requires the head of each government agency to adopt written standards
governing disclosure and also to implement sound measures governing archiving
of documents. Other key issues include the requirement that fees
related to processing requests be reasonable (see note below) and
that the information disclosure review panel have adequate resources.

Both the ARC commentary and the debates that took place in the Diet
provide valuable insights into the reasoning behind each provision of the
law. It is expected that this legislative history will play an important
role in interpreting the new law.

The Information Disclosure Law is an important first step toward bringing
Japan in line with a worldwide trend toward greater legislative and regulatory
transparency. Of greatest importance, it provides a framework for
further measures to heighten citizen participation in and supervision of
government activity. The original American FOIA was itself a relatively
weak statute, but the persistence of disclosure activists and the shock
of Watergate-era events led to dramatic revisions to the statute and strengthening
of the public right of access. As Japanese society transforms to meet the
challenges of the future, the Information Disclosure Law will also be subject
to change.

Local Government Disclosure Ordinances

As noted above, local governments began adopting disclosure ordinances
in the mid-1980's. Within a few years all major cities and prefectures
had adopted disclosure rules and information requests were being filed
all over the country. The disclosure movement received a major boost
due to strong public interest in so-called "kan-kan settai," "kara-shutcho"
and other abuses in public spending that came to light through aggressive
use of the disclosure ordinances by a national network of attorneys and
public-spirited citizens (for details, see Lawrence Repeta "Local Information
Disclosure Laws in Japan," at www.nbr.org/publications/executive_insight).
Disputes under these local rules found their way into the courts.
As of the end of 2001, more than 300 contested cases had been decided by
Japan's courts under these regulations. Despite the generally broad
language of exemption clauses (see below), in many cases the courts have
decided in favor of disclosure. These cases will serve as precedent
in interpreting the provisions of the new national law.

National Information Disclosure Law

The following chart identifies key provisions of Japan's Information
Disclosure Law, compares them against the most analogous provisions of
the U.S. Freedom of Information Act, and offers brief commentary and analysis.
All U.S. citations are to the Freedom of Information Act, at 5 U.S.C. sec.
551 et seq. Japan citations refer to the Gyoseikikan no Hoyu Suru
Joho no Kokai ni Kansuru Horitsu (Law Concerning the Disclosure of
Information Held by Administrative Organs), Law Number 42 of 1999.

Since the 1980's,
many of Japan's government offices have maintained windows for examination
of public documents. In 1991, an interministerial committee adopted a set
of standards for information to be disclosed. Citizens groups have been
thoroughly dissatisfied with this initiative, complaining that officials
disclose only documents prepared expressly for public dissemination, cataloging
of documents is haphazard, and working level officials have little understanding
of the standards.

The 2001 Information Disclosure
Law does not require government agencies to take any proactive steps to
publish or otherwise make documents publicly available. It simply
provides a right to request the disclosure of information and a corresponding
government obligation to respond.

A Cabinet Order has been
issued in accordance with Article 37 of the law that sets out universal
guidelines for agencies on how to manage their administrative documents.This
Cabinet Order directs that each government agency establish and make available
for public inspection via the internet a searchable index of the titles
of the documents held by that agency.While at first glance such an index
may appear to be a major tool for requesters, in many cases the document
titles provide little or no insight into what information a document actually
contains, forcing requesters to discuss their requests with the administrators
in charge of the information they seek.

It should also be noted that
a 1999 Cabinet Order established a public comment procedure for the formulation
of regulations of general applicability. This requires government agencies
to publish proposed regulations or proposed amendments to existing regulations,
and to take into consideration public comments before issuing final statements
of regulations.

The opening sections
of the US Freedom of Information Act ("FOIA") mandate proactive information
disclosure by government agencies. Section 552(a)(1) requires publication
in the Federal Register of information such as descriptions of agency organizations,
functions, procedures, substantive rules, and statements of general policy.
Section 552(a)(2) further requires the general availability for public
inspection and copying of final opinions in adjudicated cases, specific
policy statements and administrative staff manuals. This latter set of
documents is often referred to as "reading room materials." The documents
must be indexed for easy access and provided in "reading rooms" available
to the public.

1996 amendments to FOIA expressly
expanded proactive disclosure to include electronic media. This is
discussed below.

Although Japan's
law does not include a requirement of affirmative disclosure, Article 40
does state that "In order to comprehensively promote disclosure of the
information in its possession, the government shall strive to enhance measures
concerned with the provision of information held by administrative agencies."
Optimistic observers may point to this language as the source of a future
set of rigorous proactive disclosure requirements.

The proactive disclosure
requirements of the US FOIA became especially important with Congress'
adoption of the Electronic FOIA (described below). Congress stressed the
efficiency benefits of proactive disclosure: by screening documents already
released under Sections 552(a)(1) and (2), requesters in many cases may
discover that information is available without the need for a FOIA request
at all. Review of released information should also enable parties to frame
more precise document requests.

Electronic
Media

Japan's law defines
an "administrative document" to be a "document, drawing, or electromagnetic
record," and further defines an electromagnetic record as "a record created
in a form that cannot be recognized through one's sense of perception such
as in an electronic form or magnetic form."

Regarding methods of implementing
disclosure of electronic records, the law states that agencies must take
into account the type of electronic record and "the state of development
of information technology."

In 1996, the
US Congress passed the "Electronic Freedom of Information Act," to address
recent developments in information technology. This law explicitly
defined "records" to include information maintained "in any format, including
an electronic format" and established the affirmative requirement that
all records which an agency must make available under present law (including
"reading room materials") must be made available on-line as well as in
hard copy. This amendment also clarified that agencies must make
reasonable efforts to search for documents in electronic form and established
the requirement that all agencies must create general indices of previously
released material and that such indices must be made available on-line
no later than December 31, 1999.

Agencies of both
governments have proactively adopted extensive Internet websites to provide
access to a wide range of information. The 1996 FOIA amendments seek to
enhance internet usage. On-line access will spare many users the
need to visit "reading rooms" or otherwise travel to the location of physical
documents.

Japan's Ministry of Public
Management is separately promoting policies for the "informatization" (johoka)
(increased use of computer files and networked computer communication)
of administrative practices. The terms of this initiative do not
address public information disclosure.

Right
to Demand Disclosure

Japan's law provides
that "all persons" have the right to demand information. Requesters
must submit a document "in which are entered" the titles of administrative
documents or other particulars that will suffice to specify the administrative
documents relevant to the disclosure request." If the agency chief
deems that a request is deficient in some way, the requester may be asked
to revise the request; in such a case the law does obligate the agency
chief "to put at the requester's disposal information that will be helpful
in the revision."

There is no language regarding
the government's burden to conduct a search for relevant documents.
Where a request is denied, there is no requirement in the law itself that
the requester be supplied with the specific reasons for the denial.
However, Japan's Administrative Procedure Law requires that "at the time
of rendering adverse dispositions, administrative agencies shall indicate
to the subject parties the reasons therefor." This provision is seen
as achieving the same effect as requiring a statement of reasons for denial
within the law itself.

As in the US law, the right
to demand disclosure is subject to exemptions (discussed below).

All persons,
domestic or foreign, natural or corporate, have the right to demand disclosure.
Requests are sufficient if they reasonably describe the information sought;
information can be sought for any reason whatever. Requests apply
to all information, held in whatever form, including electronic formats.
Government agencies must conduct a "reasonable" search for the records
requested; if challenged in court, the government must demonstrate "what
records were searched, by whom, and through what process." A decision
to deny a request must state the reasons for the denial, the right to appeal
and the name and title of each person responsible for the denial.
In litigation, the government has the burden to prove that the cited exemption
applies.

Perhaps the single
most important factor in the success of an information disclosure system
is the attitude of the officials implementing the system. Through
much of its 30 year history, the American FOIA has been characterized by
a continuing battle between an activist Congress seeking broader disclosure
and an executive branch seeking to minimize disclosure standards.
1993 memoranda by President Clinton and Attorney General Reno dramatically
changed this relationship. The presidential memorandum states unequivocally
that maximum disclosure is government policy and calls for "consumer-friendly
service". The Reno memorandum directs release of information when
it only "technically or arguably" falls within an exemption and condones
non-disclosure only in cases of foreseeable harm due to disclosure.

These policies appear to
have been reversed by a memorandum from Attorney General Ashcroft dated
October, 2001 and other actions of the Bush Administration.

Exemptions
to Disclosure

Japan's law creates
six specific exemptions and also incorporates others by reference.
Language creating each of these exemptions is broad and appears to vest
a maximum of discretion in agency personnel. (e.g., certain categories
of administrative information can be withheld when the release of the information
would "risk unjustly causing confusion among the people.")

The US FOIA provides
nine specific exemptions to disclosure and incorporates by reference exemptions
which may be created by language in other statutes. In general, the language
creating these exemptions is very narrow. (e.g., "specifically authorized"
to be kept secret," "related solely to internal personnel rules," "disclosure
of which would constitute a clearly unwarranted invasion of personal privacy").

Both the US statute
and Japan's law establish a structure in which information disclosure is
the general rule, but may be denied in exceptional cases. Statutory
language creating the exceptions is the biggest single factor determining
scope of disclosure. Broad wording of the exemptions in Japan's law may
have a big impact in limiting documents subject to disclosure.

Japan's law has been subject
to much criticism on this score, including comments that it is an "information
non-disclosure law." During the years leading up to and during the
government's drafting of the law, Japan's bar associations, consumer groups
and all of Japan's opposition political parties proposed statutes with
more narrow language setting exceptions to disclosure.

Analysis of each of Japan's
exemptions together with the most closely analogous US exemption follows.

Exemption
for Individual Privacy Information

Article 5(1)
exempts information on individuals by which specific individuals may be
identified in a document or through a collation of information, or when
a specific individual cannot be identified, when by making the information
public there is a risk that an individual's rights and interests will be
harmed. Three exceptions allow disclosure: information that, by law
or custom, has been published, or is scheduled to be published, information
recognized as necessary to be made public in order to protect a person's
life, health, livelihood, or property, and information concerning the office
and the performance of duties of a public official.

The starting point is a presumption
of non-disclosure when an individual can be identified. Analysis
then turns on interpretation of the exceptions.

Exempts personnel
and medical files and similar files, the disclosure of which would constitute
a "clearly unwarranted invasion of personal privacy." Section 552(b)(6).

To decide whether an invasion
is "clearly unwarranted," U.S. courts have adopted the approach of balancing
the personal privacy interest against the public interest in access to
the information.

Japan's law displays
a radically different approach from US law. The US exemption is limited
to "clearly unwarranted" cases. Japan's exemption starts with a blanket
rule against disclosure of documents where a specific individual can be
identified. A draft provision proposed by the Japan Civil Liberties
Union ("JCLU") would have restricted non-disclosure to information concerning
"beliefs, religion, specific physical characteristics, health, family relationships,
work, school record, place of origin, address, organizational memberships,
property or income." Opposition party proposals adopted a similar approach.

The debate in Japan over
the release of information concerning individuals has centered on demands
for the release of the names of public officials when requesting information
on entertainment expenses under the local information disclosure ordinances.
The wording of the law appears to preclude the release of the names of
public officials, unless the names would customarily be made public.
In effect, it is expected that only the names of public officials over
a certain rank, whose names would customarily be published, will be disclosed.
In reaction to the widely publicized "kan-kan settai" abuses, several
prefectural ordinances now require, in principle, the disclosure of officials'
names.

Exemption
for Business Information

Exempts information
concerning corporations or their officers or employees that (A) may harm
the rights, competitive status, or other legitimate interests of the corporation
or individual or (B) was voluntarily provided at the request of a government
agency on the condition that it not be disclosed and where the attachment
of the condition is rational in light of the nature of the information
and the circumstances at the time. Article (5)(2).

In the same section, the
law does allow the release of otherwise protected business information
"recognized as necessary to be made public in order to protect a person's
life, health, livelihood, or property."

Exempts trade
secrets and commercial or financial information obtained from a person
and privileged or confidential. Section 552(b)(4).

Application of
the US rule relies on common law regarding "trade secrets" and related
concepts. The voluntary/non-voluntary distinction in Japan's law
was borrowed from the US Critical Mass decision limiting the disclosure
of information that was voluntarily submitted to the government.
What constitutes "voluntary submission" can be a difficult issue.
In the US, there is much case law and executive branch guidance to assist
in interpretation.

Non-disclosure in cases where
information is submitted on a voluntary basis has been heavily criticized
in Japan as welcoming collusion between government officials and corporate
officers to keep information confidential.

Exemption
for National Security and Diplomacy Information

Exempts information
that "the head of an administrative agency, with adequate reason, deems
to pose a risk of harm" to national security or foreign relations. Article
5(3).

Exempts matters
"specifically authorized under criteria established by an Executive Order
to be kept secret in the interest of national defense or foreign policy
and are in fact properly classified pursuant to such Executive Order."
Section 552(b)(1).

U.S. courts generally
show great deference to agency expertise. At this writing, the key
US regulation is Executive Order 12,958, signed by President Clinton in
1995. This order establishes several mechanisms to reduce secrecy,
including mandatory de-classification as documents age. It is reported
to be under review by the Bush Administration.

Japan's law leaves use of
the exemption almost completely to the subjective judgment of the agency
head, only requiring "adequate reason" for a denial of disclosure.
While the ARCs draft employed an objective standard, the ARC commentary
does state that this is an area in which courts should defer to the expertise
of the bureaucracy. In Diet testimony it was explained that the subjective
standard employed in the law only makes clear the deferential purport of
the ARC draft.

In the US case, in camera
proceedings play an especially important role in applying this exemption.
Agencies may submit in camera affidavits and documentation to assist
the court in evaluating whether classification is appropriate while at
the same time protecting confidentiality.

It is generally thought that
Article 82 of the Constitution of Japan, which requires that all trial
proceedings be held in public, prohibits in camera proceedings.
However, hearings held by Japan's Information Disclosure Review Board (Law,
Acts. 21-26; see "Appeals Procedures," below) are closed to the public,
effectively creating an in camera procedure.

Exemption
for Criminal Investigation Information

Exempts information
that an agency head "with adequate reason, deems to pose a risk of causing
a hindrance to the prevention, suppression or investigation of crimes,
the maintenance of public prosecutions, the execution of sentencing, and
other public security and public order maintenance matters." Article
5(4).

Exempts records
compiled by law enforcement agencies but only to the extent disclosure
would (a) interfere with enforcement proceedings; (b) deprive a person
of a fair trial; (c) constitute a clearly unwarranted invasion of privacy;
(d) disclose identity of a confidential source; (e) disclose investigative
techniques and procedures or guidelines where disclosure could "reasonably
be expected" to risk circumvention of law; or (f) in cases where disclosure
"could reasonably be expected to endanger the life or physical safety of
an individual". Section 552(b)(7).

While the US
exemption applies to both criminal and civil matters, in Japans case, the
ARC commentary points out that application of this exemption is meant to
be limited to information concerning the investigation and prevention of
crimes, rather than applying to all police or investigatory activities.

As in Japan's exemption for
national security information, above, the standard here is subjective,
deferring to the judgment of the agency head.Here again, the unavailability
of in camera procedures in Japans courts may make it difficult for
courts to adequately review decisions to withhold information under this
exemption. However, as noted above, the Review Board may review documents
in camera, adding weight to the role of the Review Board as a means
of overseeing the operation of law.

Exemption
for Deliberative Process Information

Exempts "information
concerning deliberations, studies, or consultations internal to or between
either national or local public entities that, if made public, would risk
unjustly harming the frank exchange of opinions or the neutrality of decision
making, risk unjustly causing confusion among the people, or risk unjustly
bringing advantage or disadvantage to specific individuals." Article
5(5).

Exempts inter-
and intra-agency memoranda and letters that would not be available to a
party in litigation. Section 552(b)(5). This exemption includes
several categories of documents, including those subject to the attorney-client
privilege and work product doctrine. The most commonly invoked privilege
is known as the "deliberative process privilege." It is intended
to protect the "decision making processes of government agencies."

Language in Japan's
law appears to track case law under the US deliberative process privilege.
According to a Justice Department analysis, "three policy purposes have
been held to constitute the basis for this privilege: (1) to encourage
open, frank discussions on matters of policy between subordinates and superiors;
(2) to protect against premature disclosure of proposed policies before
they are finally adopted; and (3) to protect against public confusion that
might result from disclosure of reasons and rationales that were not in
fact ultimately the grounds for an agency's action."

In the US case, the standard
used in deciding whether or not this exemption may be applied is based
on what would constitute privileged information in the civil discovery
context.Compared to this relatively well-established standard, exemption
is based on a rather vague sense of what would constitute risking "unjustly
causing confusion, etc.

ARC commentary emphasizes
that the harms this exemption seeks to avoid must be balanced against the
purpose of the law. (The proposed ARC draft law included "participation
in administration" by the public among express statutory proposes.
This language does not appear in the law adopted by the Diet. Further,
the commentary strongly supports disclosure of information concerning the
deliberations of the advisory committees (shingikai) that are so
often used to establish a consensus on policy issues.

The application of
exemption is a great deal broader than the US exemption in that it not
only applies to deliberative information of agencies that are subject to
the law, but it also applies to information regarding deliberations in
and between national and local bodies that are not subject to the law.
On the national level, communications with the Diet, the Cabinet, and the
judiciary may be protected by this exemption. While there is no requirement
that such bodies be consulted before disclosure of information that may
affect their deliberations, the ARC commentary recommends such consultations.

Because the information at
issue under this exemption generally concerns only the government itself,
the 1993 Clinton and Reno memoranda described above have applied most directly
to cases affected by this exemption, thereby expanding the range of documents
disclosed.

General
Exemption for Agency Operations

Japan's Article
5(6) is an omnibus provision protecting a broad scope of information concerning
the operations not only of agencies directly subject to the law but also
other national and local entities.

Under an umbrella paragraph
that exempts the release of information that would cause a "hindrance to
the proper performance" of the "affairs or business" of national or local
entities, there are five subparagraphs that set forth examples of such
information, as follows: (a) information concerning "audits, inspections,
supervision and testing," where the release of the information would risk
making difficult the "grasping of accurate facts," or facilitate "illegal
or unfair acts," (b) information concerning "contracts, negotiations, or
administrative appeals and litigation," the release of which would risk
"unfairly harming the State's property interests or position as a party,"
(c) information concerning research studies, the release of which would
risk obstructing "their impartial and efficient execution," (d) information
concerning personnel management, the release of which would risk hindering
the "impartial and smooth maintenance of personnel matters," and (e) information
concerning "the business of an enterprise managed by the State," the release
of which would risk harming "legitimate interests arising from the management
of the enterprise."

Exempts from
disclosure documents "related solely to the internal personnel rules and
practices of an agency." Section 552(b)(2).

The language
of Japan's law creates a very broad exemption for administrative activities.
Although the U.S. exemption for agency internal personnel rules and practices
is the most closely analogous provision, it is severely limited by comparison.

Article 5(6) exempts any
information the disclosure of which risks "causing a hindrance to the proper
performance" of an agency activity. Thus, application will turn solely
on interpretation of the term "proper performance." While the five
subparagraphs may serve as limitations to the exemption based on foreseeable
harms and specific areas of activity, the subparagraphs are merely examples
which do not limit the actual scope of the exemption.

Similar language is found
in many prefectural ordinances. This provision is the source of litigation
concerning access to data describing entertainment and other expenditures
by local government officials. Draft proposals from the Shinshinto
and Minshuto limited protection to such administrative documents
when disclosure would "clearly result" in interference with proper performance
of the matter concerned.

Cases applying the US exemption
for internal personnel rules and practices have focused on sensitive materials
and have upheld nondisclosure of documents that are "predominantly internal"
and whose disclosure "significantly risks circumvention of agency regulations."
The foreseeable harm is that disclosure would "benefit those attempting
to violate the law and avoid detection." Section 552(b)(2).

Conflicts
with Other Statutes

In drafting its
proposed bill, the ARC decided it was unnecessary to provide an express
exemption for records required to be held confidential under another statute.
Instead, the ordinary rules of statutory construction will be applied to
solve potential conflicts between the Information Disclosure Law and other
statutes. This same thinking appears to have survived in the law
itself.

Where there is another law
that provides for the release of information to any person in a manner
provided for by the information disclosure law, the other law is to be
applied and the agency head is not to disclose the same materials in the
same manner under the information disclosure law. Article 15.

FOIA expressly
exempts records which are "specifically exempted from disclosure by statute"
provided that such a statute "requires that the matters be withheld from
the public in such a manner as to leave no discretion on the issue" or
"establishes particular criteria for withholding or refers to particular
types of matters to be withheld." Section 552(b)

Although the
language of the U.S. exemption is narrowly drawn, many statutes have been
held to qualify under this exemption. Examples include the federal
rules of criminal procedure preserving the secrecy of grand jury material,
the Ethics in Government Act, protecting the financial disclosure reports
of special government employees, and Title VII of the Civil Rights Act
of 1964 concerning matters pending before the Equal Employment Opportunity
Commission.

Existence
or Non-Existence of a Document

Article 8 of
the law grants all administrative agencies the power to deny requests without
revealing the existence or non-existence of a document, in cases where
"by merely answering whether or not administrative documents exist or do
not exist" information that falls within the disclosure exemptions will
be released.

Although not
specifically provided for by language in the FOIA, in a narrow range of
cases, US courts have allowed agencies to refuse to confirm the existence
or non-existence of a document where simple acknowledgment of the existence
of the document would constitute the disclosure of information that may
otherwise fall within a disclosure exemption. This is commonly known
as a "Glomar" response, after the original case in which this exception
was recognized.

In Japan this
is a highly contentious provision. Draft proposals from the Nichibenren
and Minshuto had no such provision. The Shinshinto
proposal included a "Glomar" provision, but limited application to defense,
diplomacy and criminal investigations. Despite Administrative Procedure
Law provisions requiring agencies to provide a reason for the denial of
a request, disclosure activists worry that this provision will be abused
by the agencies, and that its use cannot adequately be challenged in court.

Time
Limits

An agency must
respond to a request within 30 days of request. Article 10.

May extend for 30 days due
to difficulty involved in the disposition or for some other reason.
The requester must be notified of the specific reason for the extension.
Article 10(2).

If a decision cannot be made
within 60 days because a request entails a voluminous number of documents
and a decision on each document within the time limit would interfere with
agency functions, the agency may make a decision as to a reasonable part
of the requested documents, making the remaining decisions within a reasonable
period of time.

An agency must
respond within 20 working days of receipt. Section 552(a)(6).

May extend date of determination
for additional ten (10) days in cases of "unusual circumstances" as defined
in the statute. Section 552(a)(6)(B).

A court may extend the deadline
for determination in "exceptional circumstances" -- exceptional circumstances
do not include heavy workload. Section 552(a)(6)(C).

In practice,
many US government agencies are far behind schedule. Excessive delay is
probably the most common complaint regarding operation of the FOIA. Use
of electronic information technology to speed up processing of requests
was a major concern of Congress when it adopted the Electronic Freedom
of Information Act (1996). One of the major objectives of that law
was to expedite processing of requests.

Accountability/Disciplinary
Action for Failure to Disclose

Japan's law does
not provide any sanction for an agency's improper denial of a request and
has no provision granting attorney's fees.

Denial shall
include the names of officers or employees denying. Section 552(a)(6)(C)

FOIA provides both for disciplinary
action against government officers who deny requests "arbitrarily or capriciously"
(Section 552(a)(4)(F)) and for the award of attorney's fees and litigation
costs in the discretion of the court. Section 552(a)(4)(E).

In the US, disciplinary
action against individual officers is very rare. However, courts
do award attorney's fees in many cases and sometimes the amounts are substantial.
Some public interest organizations that actively bring FOIA suits rely
on the award of fees and costs as a significant part of their budgets.

Agencies
Subject to Disclosure Requirements

Article 2(1) defines agencies
to include "organs within the Cabinet or established under the jurisdiction
of the Cabinet," the Cabinet Office and the Imperial Household Agency,
and other agencies designated in provisions of the National Government
Organizations Law and the Cabinet Office Establishment Law, as well as
the Board of Audit.

The law does not apply to
over 80 "special corporations" established to conduct various governmental
affairs. Article 42 states that regarding such entities, "the Government
shall take necessary measures such as legislative measures... in order
to promote the disclosure and provision of information held by public corporations."
A separate statute providing for disclosure by these entities passed the
Diet on November 28, 2001.

Section 552(f)
expressly defines "agency" to include "any . . . Government corporation,
Government controlled corporation, or other establishment in the executive
branch of the Government, or any independent regulatory agency."

This is a highly
contentious issue in Japan. Special corporations carry out many regulatory
and other governmental functions (e.g., Donen regulates the nuclear
power industry, Jutaku Kodan is a national home financing agency,
etc.) Exempting these organizations creates a significant gap in
statutory coverage.

The attachment of the additional
provision requiring the government to take action two years after promulgation
was a significant victory won by opposition parties in Upper House debates
on the law.

On the US side, there appear
to be very few equivalents to Japan's "special corporations" with administrative
authority only loosely supervised by an administrative agency.

Fees

Article 16 of
the law requires that requesters pay a fee at the time the request is submitted,
as well as a fee upon disclosure of the requested information, leaving
the actual amount to be decided by Cabinet Order, but requiring that fees
be "within the limits of actual expenses," as well as that "consideration
be given to see that they are of as affordable an amount as possible."
The law provides for a potential fee waiver "when it is deemed that there
is economic hardship or other special reasons."

The Cabinet Order implementing
the law sets the handling fee for submitting requests at 300 Yen.
Upon disclosure, to simply view the disclosed information, there is a charge
of 100 Yen for every 100 pages, and if copies are desired there is an additional
charge of 20 Yen per page. However, the first 300 Yen of the viewing
or copy fees will not be charged as that amount is deemed to be covered
by the original handling fee paid at the time the request was submitted.
There are different fee schedules for inspection and copying of information
that is recorded in a media other than paper.

Fees may be waived by up
to 2,000 Yen where the requester cannot pay the charged fee; it is likely
that a person who receives welfare support would be eligible for this waiver.
Fees may also be waived for "other special reasons," such as where the
information should normally have been made public without a request, or
where the information is necessary to protect a person's life, or where
the agency has decided upon discretionary disclosure of otherwise exempt
information for reasons of public welfare.

Section 552(a)(4)(A)(ii)
sets out a three level system for determining fees that is based upon the
type of requester. The first level applies to requesters who plan
to put the requested information to "commercial use," and includes "reasonable
standard charges for document search, duplication and review." The
second level applies where "records are not sought for commercial use and
the request is made by an educational or noncommercial scientific institution
... or a representative of the news media." Requesters who fall into
this second category need only pay "reasonable standard charges for document
duplication," and are completely exempt from being billed for search and
review fees. The third level applies to any requester who does not
fall into the first two levels, and limits fees "to reasonable standard
charges for document search and duplication." Except for commercial-use
requesters, the first 100 pages of duplication as well as the first two
hours of search time must be provided free of charge, and agencies may
not charge a fee where "the costs of routine collection and processing
of the fee are likely to equal or exceed the amount of the fee" itself.

Section 552(a)(4)(A)(iii)
provides that fees should be waived or reduced "if disclosure of the information
is in the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester."

Actual fee schedules are
promulgated as agency regulations that must conform to guidelines promulgated
by the Director of the Office of Management and Budget.

The ARC commentary
states that in a system that provides a universal right to request disclosure
the government should not take into account the identity of the requester
or place any restrictions on usage of the disclosed information, and therefore
it cannot create any provisions that establish general fee waivers based
upon the identity of the requester or the purpose of the request.

Most Japanese agencies have
not set aside any particular part of their budgets to fund information
disclosure, and there are no estimates of the costs that the new system
will incur.

In the US, businesses comprise
the single largest category of FOIA requesters. In Japan, it is generally
believed that news reporters have been the most active requesters in the
first year of implementation. At the outset, at least, it appears
that Japanese business people have little interest in trying to take commercial
advantage of the new disclosure law. Some speculate that long-established
contacts within the various agencies are seen as providing a more efficient
means of accessing government information than the law. Because the
government does not ordinarily collect information regarding the types
of users and the purposes behind requests, in the future it may be very
difficult to determine accurately whether or not commercial requests are
at a sufficient volume that they such requesters should bear a greater
portion of the costs of disclosure.

Appeal
Procedures

Dissatisfied
requesters are provided two avenues of appeal. They can file a request
for review of the non-disclosure decision by the "Information Disclosure
Review Board" (Review Board) established by the law (described below),
or they can file a suit for nullification of the non-disclosure decision
directly with one of eight district courts. There is no requirement
that requesters first appeal to the Review Board before filing suit in
court.

Articles 21-26 establish
the Review Board, a nine-member panel attached directly to the Office of
the Prime Minister, with panel members appointed by the Prime Minister
subject to Diet approval. Appeals to the Review Board are governed
by the Administrative Complaint Inquiries Law. Under this law, the
Review Board does not actually have the power to force an agency to disclose
documents; the ARC commentary indicates that the council is intended to
act as a "third party," providing guidance to the administrative agency
that must make the disclosure decision. Thus, an appeal to the Review
Board is actually made to the agency that made the original disposition,
and the agency head then refers the appeal to the Review Board for examination.

In most cases, the Review
Board examines appeals in three-member panels. These panels have
the power to demand that the agency submit document(s) in question for
an in camera examination. Once the Review Board has come to
a conclusion, it issues a written opinion on the matter, which is published
and sent to the agency head. The agency then must decide whether
to follow the opinion of the Review Board, or stand by its original disposition.
All Review Board recommendations are published on the Internet.

Section 552(a)(4)(b)
of FOIA enables requesters to file suit seeking an injunction to order
disclosure of agency records improperly withheld. Requesters have
several choices of forum. They may file suit in federal district
court in the district where they reside or have their principal place of
business, or where the records are located, or finally, in the District
of Columbia

Dissatisfied requesters must
first pursue an administrative appeal before going to court. However,
if a request is not answered within the twenty-day statutory time limit
(see "Time Limits", above), the requester is deemed to have exhausted his
or her administrative remedies, allowing an immediate judicial review.

A major point
of contention during Diet debate over law was the location of judicial
forum. Under the Administrative Case Litigation Law suits must be filed
in the district court that has jurisdiction over the area in which the
defendant government agency is headquartered, thus resulting in a virtual
requirement that all suits be filed with the Tokyo District Court.
The inconvenience to plaintiffs from Hokkaido, Okinawa, or other areas
far from Tokyo is obvious. Compromise was reached in the Upper House by
creating an exception allowing suits to be filed in any one of seven district
courts in addition to the Tokyo District Court, but still forcing plaintiffs
from Okinawa to travel to Kyushu to file their complaints.

Appeals to the Review Board
have the advantage of being inexpensive and allowing review by a relatively
independent panel of experts. Also, an appeal to the Review Board
may create evidence (in the form of the Review written opinion) that
is based upon examination of the documents in question (as noted above,
it is generally believed that courts may not use an in camera
procedure).

Many local ordinances have
established Review Boards similar to that established by the national law.
Results appear to be mixed, with success rates (overturning denials of
disclosure requests) typically running between 25% to 50% on a prefecture-by-prefecture
basis. Composition of the panel is critical. Appeals on the
local level have typically require six to twelve months on average.

Grier, Jean. "The Need for a More Transparent and Accessible Administrative
System in Japan." Paper presented to the Fifth International Conference
on Japanese Information in Science, Technology & Commerce, 30 July-1
August 1997, US Library of Congress, Japan Documentation Center. Preprints,
89-92. [Contact (202) 482-6805, fax (202) 219-3310,
poneillbrown@doc.gov]

http://clearing-house.org ---
This is the website of Information Clearinghouse Japan, a Tokyo-based NGO
devoted to promoting broad information disclosure and citizen participation
in public policymaking.

http://www.jkcc.gr.jp --- This is
the website of Joho Kokai Shimin Center (Information Disclosure Citizens
Center), an NGO that promotes citizen involvement in government document
disclosure. It is closely allied with the Citizen Ombudsmen organization.

Gyosei Kikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu (Law
Concerning the Disclosure of Information Held by Administrative Organs)
The text of the Information Disclosure Law itself, the ARC proposal and
commentary, along with other documents can be found at: http://www.somucho.go.jp/gyoukan/kanri/a_06.htm

Other Documents:

Joho Kokai Ho Kaisetsu (Interpretation of the Information Disclosure
Law), Kitazawa, Yoshihiro and Miyake, Hiroshi, Tokyo: Sanseido,1999.
This book examines the law from the point of view of a potential requester,
and provides detailed explanations and commentary.

Joho Kokai Ho no Chikujo Kaisetsu (Article by Article Interpretation
of the Information Disclosure Law), Uga, Katsuya, Tokyo: Yuhikaku, 1999.
This book provides a detailed examination and interpretation of each article
of the law, from first to last, with an emphasis on the legal rationale
behind each provision.

Joho Kokai Ho: Rippo no Ronten to Shiru Kenri (Information Disclosure
Law: Legislative Issues and the Right to Know), Miyake, Tajima and Usaki
(eds.), Tokyo: Sanseido, 1997. This volume gathers articles by a
committee of specialists formed in 1994, including prominent attorneys,
journalistsand young scholars promoting information disclosure. Topics
include all key aspects of the ARC draft information disclosure bill with
analysis of leading cases and comparisons to US and other foreign precedents.

Joho Kokai Hosei, Gyosei Kaikaku Iinkai Jimmukyoku Kanshu. (Information
Disclosure Law, Editorial Supervision by the Secretariat of the Administrative
Reform Committee) Dai-ichi Hoki, 1997. A 600-page volume which gathers
documents reviewed by the Information Disclosure Subcommittee of the Administrative
Reform Commission. It presents an extensive collection of Japan court decisions,
translations of foreign statutes, court decisions and other documents,
text and analysis of Japanese local government ordinances and other material.

Numerous articles have appeared in all major Japanese law periodicals
including Jurisuto, Horitsu Jiho and others.

UNITED STATES

Documents

Freedom of Information Act Guide & Privacy Act Overview, US Department
of Justice, Office of Information and Privacy (September 1998 edition).
A 800-page overview discussion of FOIA, including statutory analysis, description
of significant court precedents and many important procedural aspects.
It is published as a guide to federal officers applying FOIA in their daily
work.

Mr. Repeta, Director of the Temple University Law Program in Japan,
is a graduate of the University of Washington School of Law and a
member of the Washington State Bar Association. He has been a member of
the Japan Civil Liberties Union since 1980 and is a founding director of
Information Clearinghouse Japan, a non-profit organization devoted to
promoting sound government information disclosure practices. He served
as a visiting scholar at the University of Washington Law School during
the 1997-98 academic year when he commenced research on this project.
His research into Japan's information disclosure law has been supported
by a grant from the U.S.-Japan Friendship Commission.

David M. Schultz, Esq.

Mr. Schultz is a practicing attorney with the Tokyo Law Firm of Abe
and Matsutome. He holds J.D. and L.L.M. degrees in Asian and Comparative
Law from the University of Washington School of Law. David's work
on this topic has been funded by a grant from the U.S.-Japan Friendship
Commission. He is a member of Information Clearinghouse Japan and
the Japan Civil Liberties Union. Before entering law school David
worked for eight years in Tokyo as a television news producer, first with
NBC's Tokyo bureau, and then with the BBC. He received his B.A. in
International Relations from Boston University.